American Federation of Government Employees, Council 238 (Union) and United States Environmental Protection Agency, Washington, D.C. (Agency)

[ v62 p466 ]

62 FLRA No. 84

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 238
(Union)

and

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
(Agency)

0-AR-4055

_____

DECISION

June 6, 2008

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome T. Barrett filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance, which alleged that the Agency violated the parties' collective bargaining agreement (Master Agreement) when it linked individual employee performance standards to the Agency's strategic plan without bargaining with the Union. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      In 1998, the parties reached agreement on a new Agency performance management system, also referred to as "PERFORMS," that was incorporated into the parties' Master Agreement. Award at 3. In the new Agency performance management system, the parties agreed to change individual employee performance standards from a five-level performance standard to a Pass/Fail performance standard. In 1998 and 1999, the Agency provided employees briefing and trainings sessions on the Agency performance management system.

      In 2001, the parties agreed on a successor to the Master Agreement, which transferred the Agency's 1998 Pass/Fail performance standard into the new Master Agreement. Also in 2001, the Office of Personnel Management and the Office of Management and Budget issued the President's Management Agenda (PMA) directing agencies to implement multi-level performance evaluation systems and to link individual employee performance to the agencies' respective strategic plans.

      In May 2004, the Agency advised the Union in a memorandum that it intended to link individual employee performance standards to the Agency's strategic plan. The Union subsequently requested to bargain over that decision. The Agency denied that request on the ground that the Agency had not changed working conditions and that, because it was implementing the PMA, the matter was not a subject of bargaining.

      Subsequently, the Union filed a grievance alleging that the Agency violated the parties' Master Agreement when it linked individual employee performance standards to the Agency's strategic plan without bargaining with the Union. The grievance was submitted to arbitration, where the parties were unable to agree to a statement of the issue. Both parties agreed, however, that the Agency's decision to create a linkage between its strategic plan and the Agency's performance evaluation system was the "root" of the dispute. Id. at 2. Therefore, the Arbitrator framed the issues as follows: "Can the Agency link the employee performance evaluation process to the Agency's strategic plan without bargaining with the Union? And, if not, what is the appropriate remedy?" Id. at 3. In order to resolve this issue, the Arbitrator determined that he needed to decide when the Agency first made a linkage between the Agency's strategic plan and individual employees' performance under the employee performance assessment system. See id.

      Before the Arbitrator, the Union argued that, because the Agency did not respond to the Union's grievance, under Article 44, Section 3 of the parties' Master Agreement, the Agency "should be precluded from raising any issue or argument in arbitration." [n1]  Id. at 4. Furthermore, the Union argued that it had been unaware of any link between individual employee performance standards and the Agency's strategic plan [ v62 p467 ] until the Agency provided notice to the Union in May 2004.

      The Agency argued that it established the link between individual employee performance standards and the Agency's strategic plan in 1998, and, therefore, the Agency's actions in 2004 did not constitute a change in conditions of employment that gave rise to an obligation to bargain. The Agency also claimed that, because the linkage was established in 1998, the Union's grievance was untimely under Article 44(1), as no grievance was filed until 2004. [n2]  Finally, the Agency contended that the Union had two opportunities to raise linkage as an issue for bargaining during 1998 and 2001, when the parties bargained over the employee performance plan, but failed to do so.

      As relevant here, the Arbitrator determined that the "key question" that he needed to resolve was whether there was a linkage between individual performance evaluation and the Agency's strategic plan beginning in 1998. Id. at 6.

      In determining the time at which the linkage between individual employee performance standards and the Agency's strategic plan was established, the Arbitrator found that in 1998 and 1999, the Agency provided managers, employees, and the Union President with briefings and training sessions discussing the link between individual employee performance standards and the Agency's strategic plan. The Arbitrator also found that, since 1998, the Agency had linked "hundreds of individual employee evaluations" to the Agency's strategic plan. Id. at 10. Consequently, the Arbitrator concluded that since 1998 a past practice existed whereby the Agency linked individual employee performance standards to the Agency's strategic plan.

      In addition, the Arbitrator determined that the first grievance challenging the linkage was not filed until 2004, despite the fact that many employees and Union officials must have had knowledge of this linkage for years. Further, the Arbitrator determined that the only reason that the Agency issued the 2004 memorandum addressing the linkage was to reiterate its commitment to that already-existing linkage in light of the then-recent PMA requiring such a linkage. The Arbitrator determined that, because the Agency had used the linkage for six years without challenge from the employees or the Union, and without any requests to bargain over it, "[t]he challenge of that long-standing practice by the instant grievance is unsustainable" [and] "[t]he only opportunity for making such change is during the regularly scheduled bargaining . . . ." Id.

      Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator exceeded his authority. In this respect, the Union argues that the Arbitrator disregarded limitations on his authority under Article 44, Section 3 of the Master Agreement, which, the Union asserts, prevents an arbitrator from considering arguments offered for the first time at an arbitration hearing. Specifically, the Union contends that, prior to arbitration, the Agency failed to raise its argument that individual employee performance plans had been linked to the Agency's strategic plan since 1998, and thus, Article 44, Section 3 precluded the Arbitrator from considering that argument.

      Further, the Union contends that the Arbitrator's finding is based on a nonfact. In this regard, the Union argues that the record evidence does not support a finding of a past practice linking individual employee performance plans to the Agency's strategic plan. The Union also claims that, even if the Arbitrator correctly found that a past practice existed at headquarters, that does not necessarily mean that a past practice was established at the local level.

B.      Agency's Opposition

      As relevant here, [n3]  the Agency argues that the Arbitrator did not exceed his authority because he decided the issue to be determined, and the Union's exceptions merely disagree with the Arbitrator's framing of the issue. In addition, the Agency contends that the Union's argument that the award is based on a nonfact is unsubstantiated and that the Union is merely disagreeing with the Arbitrator's factual findings on a disputed issue.

IV.     Analysis and Conclusion

A.      The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations [ v62 p468 ] on their authority, or award relief to persons who are not encompassed within the grievance. See United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995). In the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See AFGE, Local 933, 58 FLRA 480, 482 (2003) (AFGE). In addition, in the absence of a stipulated issue, an arbitrator does not exceed his or her authority when he or she resolves an issue relating to the main issue as formulated by the arbitrator and the award is directly responsive to the formulated issue. NFFE, Local Lodge 2276, Int'l Ass'n of Machinists and Aerospace Workers, 61 FLRA 387, 389 (2005) (citing AFGE, Local 1741, 61 FLRA 118, 120 (2005)).

      There is no dispute that the general matter that was to be resolved at arbitration, as framed by the Arbitrator, was whether the Agency was required to bargain with the Union over linking the employee performance evaluations to the Agency's strategic plan. See Award at 2. As the parties did not stipulate to the issues before the Arbitrator, we defer to the Arbitrator's formulation of the issue. See AFGE, 58 FLRA at 482. In resolving the issue as framed, the Arbitrator found it necessary to determine whether the linkage between individual performance evaluations and the Agency's strategic plan began in 1998 because, if it did, then the linkage would be considered a past practice unchallenged by the Union for six years. By addressing that issue, the Arbitrator could determine whether the Agency had no obligation to bargain because the linkage was not a change in condition of employment, and he could assess whether the grievance was untimely under Article 44, Section 1 of the parties' Master Agreement.

      For these reasons, we find that the award is directly responsive to the formulated issue, and thus, the Union has not demonstrated that the Arbitrator resolved an issue that was not properly submitted to arbitration. Accordingly, we conclude that the Union has not demonstrated that the Arbitrator exceeded his authority, and we deny the Union's exception.

B.      The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on a nonfact basis where the alleged nonfact was disputed by the parties at the hearing. See United States Dep't of the Treasury, Internal Revenue Service, Greensboro, N.C., 61 FLRA 103, 105 (2005) (IRS) (Member Armendariz concurring in part and dissenting in part as to other matters). The Authority has found that the question of whether a past practice exists is a factual question. See Dep't of Health and Human Serv., Soc. Sec. Admin., Balt. Md., 18 FLRA 743, 755 (1985); cf. AFGE, Local 2328, 61 FLRA 510, 513 (2006) (Authority analyzes exception challenging arbitrator's finding of past practice as nonfact exception) (citation omitted).

      The Union contends that the Arbitrator's finding that a past practice exists is based on a nonfact. At arbitration, the parties disputed the factual question of whether a past practice existed. As the Authority will not grant a nonfact exception where the alleged fact was disputed before the arbitrator, IRS, 61 FLRA at 105, we deny the Union's exception.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 62 FLRA No. 84 - Authority's Decision

   Article 44, Section 3 of the Master Agreement provides:

Issues and charges raised before the arbitrator shall only be those raised at the last stage of the applicable grievance procedure. The arbitrator shall have no authority to alter in any way the terms and conditions of this Agreement, any supplemental agree